Sources of Resistance to Proportionality Review of Administrative Power Under the New Zealand Bill of Rights Act

Abstract

Much scholarship on the New Zealand Bill of Rights Act 1990 assumes that the Act requires the courts to engage in proportionality review of administrative action. This article seeks to establish two key propositions. The first is that the New Zealand case law does not bear out that assumption. The second is that there may be some distinctive features of the New Zealand context that help to explain why that is so. The author’s purpose in drawing out these sources of resistance to proportionality review is not (necessarily) to validate the absence of proportionality review in the New Zealand case law. Rather, it is to shed light on the reasons for this resistance so that the desirability (or not) of proportionality review can be addressed within a distinctively New Zealand context.